R v Caddy and Caddy

[1994] QCA 364

IN THE COURT OF APPEAL [1994] QCA 364

SUPREME COURT OF QUEENSLAND	C.A. No. 193 of 1994 C.A. No. 198 of 1994
Brisbane [R. v. Caddy and Caddy]

THE QUEEN
v.
ROBIN CADDY and
CARRIE CADDY

(Appellants)

______________________________________________________________

McPherson JA.
Davies JA.

Mackenzie J.

Judgment delivered 14/09/94
Judgment of the Court

_______________________________________________________________

APPEALS AGAINST CONVICTION DISMISSED.
IN RESPECT OF THE APPLICANT, ROBIN CADDY: APPLICATION FOR LEAVE
TO APPEAL AGAINST SENTENCE GRANTED. APPEAL ALLOWED. SENTENCE
OF IMPRISONMENT IMPOSED BELOW SET ASIDE. IN LIEU A SENTENCE OF
IMPRISONMENT FOR A TERM OF SIX MONTHS, TO TAKE EFFECT FROM 3 MAY
1994. ORDER THAT THE DATES BETWEEN WHICH THE APPLICANT WAS IN
PRE-SENTENCE CUSTODY ARE 29 APRIL 1994 AND 3 MAY 1994. THE
PERIOD OF SUCH CUSTODY WAS THREE DAYS. THAT PERIOD IS DECLARED
TO BE IMPRISONMENT ALREADY SERVED UNDER THE SENTENCE.
IN RESPECT OF THE APPLICANT, CARRIE CADDY: APPLICATION FOR
LEAVE TO APPEAL AGAINST SENTENCE GRANTED. APPEAL ALLOWED.
SENTENCE OF IMPRISONMENT IMPOSED BELOW SET ASIDE. IN LIEU ORDER
THAT THE APPLICANT PERFORM 100 HOURS OF UNPAID COMMUNITY
SERVICE, THE ORDER BEING SUBJECT TO THE USUAL REQUIREMENTS OF S.
103 OF THE PENALTIES AND SENTENCES ACT. ORDER THAT A CONVICTION

BE RECORDED.

CATCHWORDS:
CRIMINAL LAW - CONVICTION - alleged inconsistencies between accounts of the incident of the complainant and witnesses - whether inconsistencies consistent with honest recollection of witnesses observing same event - whether conviction unsafe and unsatisfactory

CRIMINAL LAW - SENTENCE - assault committed in company - no serious injury to complainant - male applicant had previous convictions for assault - violent disposition - female applicant no previous convictions - whether sentences manifestly excessive

Counsel:	Mr B. Farr for the appellants Mr M. Byrne QC for the respondent
Solicitors:	P.S. Russo and Associates for the appellants Director of Prosecutions for the respondent

Date of Hearing: 02/09/1994

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 14/09/94

These are two appeals against conviction and applications for leave to appeal against sentence which were heard together. Both appellants were convicted on 29 April 1994 in the District Court at Brisbane of assault occasioning bodily harm in company on 9 May 1992. The appellant Robin Caddy was then sentenced to 12 months' imprisonment and the appellant Carrie Caddy was sentenced to nine months' imprisonment which was wholly suspended with an operational period of four years.

The alleged assault was one committed by the appellants jointly upon Robin Caddy's de facto wife. It occurred in a house in which all three apparently lived. Shortly prior to this the appellant Carrie Caddie and the complainant had had an argument at a nearby service station during which the appellant had accused the complainant of jealousy. When they returned to the house the appellant Carrie Caddy continued the argument, shouted at the complainant and threw a punch at her. The complainant avoided it and attempted to retaliate but the appellant Robin Caddy held her. The appellants then attacked the complainant together. Robin Caddy grasped her hair and by that means dragged her around a table and pushed her into a wall whereupon Carrie Caddy then commenced punching the complainant and pulling her hair. Robin Caddy then dragged her to the front door of the house, across which was a baby gate and pushed her out, whereupon she fell over the gate and onto the front lawn.

Although the events which we have related so far consisted of the assault which was particularised, the appellants continued to assault the complainant in the front lawn by kicking her whilst she was lying on the grass. The male appellant desisted only when his mother asked him to stop in case the neighbours saw it.

The complainant gave a short statement to the police and also gave evidence at the trial. The appellant Carrie Caddy apparently denied the allegations of the complainant when they were put to her by the police but did not give evidence. It does not appear from the evidence whether the appellant Robin Caddy was ever interviewed by the police. He did not give evidence.

There were two other witnesses to the events which we have described. These were David Caddy, the brother of the male appellant and son of the female appellant, and his then wife. By the time of trial they were divorced. His former wife, Kylie Maree Sutton, gave evidence generally corroborative of that of the complainant. David Caddy did not give evidence.

It was submitted on the appellants' behalf that the verdicts in each case were unsafe and unsatisfactory. This submission was based on alleged inconsistencies between the evidence of the complainant and that of Miss Sutton, of alleged inconsistencies between the complainant's statement to the police and her evidence in court and of alleged inherent improbabilities in the complainant's version of events. In support of these submissions it was contended that the complainant had a motive to make false allegations in that she was involved in a custody dispute with the male appellant.

As to the alleged inconsistencies and inherent improbabilities, three points should be made at the outset. The first is that the trial took place nearly two years after the alleged assault.

The second is that the events both inside and outside the house probably lasted, in all, no more than a few minutes. And the third is that the complainant who, on her own version and that of Miss Sutton, appears to have been concerned mainly to protect herself, as best she could, from the blows being inflicted on her, could not be expected to have closely observed by whom or where she was being punched and kicked.

The inconsistencies are, in any event, of a fairly minor nature: whether punches were delivered to the front of the complainant's body as well as to her back, whether the female appellant as well as the male appellant kicked the complainant and whether the female appellant ever urged the male appellant to kick the complainant. Other alleged inconsistencies, on examination, appear not to be so but rather a case of one witness observing, or remembering, a minor event which the other did not. All of these inconsistencies or differences in recollection are consistent with the honest recollection of two witnesses observing the same event or series of events. The assessment of the credibility of those witnesses was a matter for the jury. We can see nothing unsafe or unsatisfactory in the conclusion which they must have reached that the complainant and Miss Sutton were both telling the truth.

The motive which the complainant may have had to make a false allegation was put to the jury. Plainly they rejected the submission that this caused her to make a false complaint.

It was then said that it was inherently improbable that the complainant did not call out for help or that Miss Sutton or her then husband did not intervene. We can see nothing improbable in either of these. On the contrary, it is not the least surprising that the witness Caddy did not intervene against his brother and mother or that his then wife would not have felt she should do so.

There being nothing unsafe or unsatisfactory in the verdict, the appeal must be dismissed.

As against both applicants on their applications for leave to appeal against sentence, it must be said that their persistence in pleading not guilty showed a lack of remorse and the assault was the more serious because it was committed on the complainant by them together. On the other hand the assault could not be described as a sustained beating of the complainant and it did not result in any serious injury. Her only injuries were tenderness to the scalp and a bruise on her leg.

The male applicant at the time of the offence was 24 years of age. He had a number of previous convictions including two for assault. The most serious of those, which occurred in January 1991, involved striking an innocent motorist on the face with his clenched fist through the open window of his vehicle. These prior convictions for assault, especially the one to which we have referred, indicate a violent disposition which the events of this offence again show.

The learned trial judge was justified in sentencing this applicant to prison having regard to the matters to which we have referred. On the other hand, because he was a young man who had not previously been sent to jail (he had previously been sentenced to nine months' imprisonment suspended for a period of 18 months) we think that, having regard to a number of comparative sentences cited to us, a term of 12 months' imprisonment was excessive. We think that an appropriate term of imprisonment for this offence, having regard to the age and previous record of this applicant, was six months' imprisonment.

The female applicant, who was 44 years of age at the time of this offence, had no previous criminal history although she was convicted of receiving some time after the commission of this offence. The sentence which the learned sentencing judge imposed was no doubt imposed to achieve some relativity with that imposed on the male applicant. Had the male applicant's sentence been appropriate it could not have been submitted that the sentence imposed on the female applicant was disproportionate to that imposed on the male applicant.

Plainly she should not have been sent to jail. Having regard to the sentence which we propose to substitute in respect of the male applicant we think that an appropriate sentence to be imposed upon the female applicant, in view of her apparently blameless life before the commission of this offence, is an order requiring her to perform 100 hours of community service. A conviction should, however, be recorded against her.

We therefore propose to make the following orders:
In respect of the applicant, Robin Caddy:

Application for leave to appeal against sentence granted. Appeal allowed. Sentence of imprisonment imposed below set aside. In lieu a sentence of imprisonment for a term of 6 months, to take effect from 3 May 1994. Order that the dates between which the applicant was in presentence custody are 29 April 1994 and 3 May 1994. The period of such custody was 3 days. That period is declared to be imprisonment already served under the sentence.

In respect of the applicant, Carrie Caddy:
Application for leave to appeal against sentence granted.
Appeal allowed. Sentence of imprisonment imposed below set
aside. In lieu order that the applicant perform 100 hours of
unpaid community service, the order being subject to the usual
requirements of s. 103 of the Penalties and Sentences Act.
Order that a conviction be recorded.